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Same-Sex Marriage Gives Man a Reprieve from Deportation, but No Legal Rights

Wedding cake of a same sex marriageAn immigration judge in Houston, Texas granted a reprieve to a Costa Rican man facing deportation based on the man’s marriage to a United States citizen. What makes this case unusual is that the man, David Gonzalez, is in a same-sex marriage. The judge’s decision is reportedly the first of its kind in Texas, and is part of a growing trend nationwide of immigration judges dismissing or deferring deportations based on same-sex marriage to a U.S. citizen. Despite the peace of mind Gonzalez must feel knowing he will not be deported, he still does not qualify for any particular immigration benefits, since federal law does not officially recognize same-sex marriages. This puts him in a sort of “twilight zone,” unable even to obtain employment authorization.

Gonzalez says that he arrived in the U.S. in 2000, coming from Costa Rica on a tourist visa in order to get away from an abusive former partner. He met Mario Ramirez, a U.S. citizen, about six years later. They got married in California in 2008 during the brief window when the state allowed same-sex marriage. They moved to the Houston area not long after that.

The government sought to deport Gonzalez for lacking legal immigration status, since he overstayed his tourist visa. The federal Defense of Marriage Act (DOMA), passed by Congress and signed by President Bill Clinton in 1996, prevented Gonzalez and Ramirez from obtaining an immigrant visa and green card for Gonzalez as the spouse of a U.S. citizen. DOMA prevents the federal government and its agencies from recognizing the validity of same-sex marriages. The decision by the Obama administration not to defend DOMA allows judges and other officials some leeway, but the law still prohibits nearly all benefits to same-sex couples that opposite-sex couples receive.

Now that Gonzalez has a reprieve, he still cannot obtain any affirmative immigration benefits. His marriage to Ramirez does not allow him to petition for an immigrant visa, and he cannot obtain a green card. In the case of opposite-sex couples, the spouse of a U.S. citizen can petition for an immigrant visa. U.S. citizen spouses are not subject to an annual numerical limit, so the waiting time is typically very short, as in weeks instead of years in many cases. While the immigrant spouse petitions for a visa, the citizen spouse can apply to adjust the immigrant’s status to that of a legal permanent resident, commonly known as a green card. Unless Gonzalez finds a different means of legal immigration, he may remain in the United States but cannot enjoy most of the benefits of legal immigration status. Perhaps most importantly, he has no way of obtaining work authorization.

The judge exercised a considerable amount of discretion in dismissing Gonzalez’s case. The reprieve is also potentially only temporary, as a political change could lead the government to try to deport him again later. Since deportation is a civil proceeding, Gonzalez does not have any sort of “double jeopardy” protection like he would in a criminal case.

The New York immigration lawyers at Samuel C. Berger, P.C. help immigrants seeking visas to come to, or remain in, the United States. Contact us today online or at (212) 380-8117 to schedule a consultation with one of our experienced attorneys.

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Violence Against Women Act, Which Includes Immigration Benefits, Up for Renewal in Congress, New York & New Jersey Immigration Lawyer Blog, March 22, 2012
Immigration Officials Allow Man on Tourist Visa to Stay in New York to Care for His Ailing Partner, New York & New Jersey Immigration Lawyer Blog, February 16, 2012
Sister of New Jersey Cancer Patient Granted Visa to Try to Save Her Life, New York & New Jersey Immigration Lawyer Blog, December 14, 2011
Photo credit: ‘Wedding cake of a same sex marriage’ by Wing (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons